Constitutional Politics: How Partisanship Will Shape Health Care

Nicholas Battaglia, Albany Law School Class of 2012, is an intern in the school's Health Law Clinic. He argues that the partisan affiliations of the judges coupled with strong legal arguments will result in more successes for the government in the health care litigation...

The constitutionality of the Patient Protection and Affordable Care Act has fostered much debate, particularly with regard to the individual mandate, requiring every American to maintain health insurance. The decision of the US Court of Appeals for the Sixth Circuit finding the mandate constitutional provided the Obama administration with a temporary sigh of relief by finding the individual mandate constitutional as a regulation of interstate commerce. One of the most interesting aspects of this decision cannot be found in its text, but rather in the fact that for the first time a Republican judge, Jeffrey Sutton, broke partisan lines and voted to uphold the law. Until now, all rulings have been dispensed along partisan lines, making it possible to predict the outcome of a case simply by knowing which political party of the president that nominated the presiding judge. Aside from this, with cases pending in the Third, Fourth, and Eleventh Circuits, it is important to note that the Sixth Circuit's decision stands to be influential in the ongoing litigation. Presently, all three circuits have heard arguments pertaining to the matter, and now, armed with the Sixth Circuit's opinion, one may attempt to hypothesize how the others will come down.

The Sixth Circuit relied on Commerce Clause jurisprudence in its decision, concluding that regulating the practice of self-insurance is facially constitutional, first, because it is an economic activity that substantially affects interstate commerce; and, second, because it is a part of a broader national scheme.

To support the finding that the individual mandate substantially affects interstate commerce, the court first distinguished the instant case from United States v. Lopez and United States v. Morrison, both cases in which the Supreme Court found the link between the activities regulated and the interstate market too attenuated. Here the court took a functionalist approach, making use of national statistics, to reason that the link was not too attenuated because "[s]elf-insuring for the cost of health care directly affects the interstate market for health care delivery and health insurance." The court consequently found that "the practice of self-insuring substantially affects interstate commerce by driving up the cost of health care as well as by shifting costs to third parties."

Next, the court aligned themselves with Gonzales v. Raich and Wickard v. Filburn, and applied the aggregation doctrine to the effects of non-commercial activity on the overall interstate market. The Sixth Circuit reasoned that in the aggregate, "Congress had a rational basis to conclude that failing to regulate those who self-insure would undermine its regulation of interstate markets in health care delivery and health insurance." Taking a precedential approach, the court looked at cases within the Sixth Circuit, but also at cases in the Fourth and Eighth Circuits, which upheld statutes by finding that failing to regulate non-economic intrastate activity in the aggregate would undermine the efficacy of an overlying interstate regulatory scheme.

Finally, the court addressed the argument that Congress has exceeded its power under the Commerce Clause by regulating inactivity. Acknowledging that the Supreme Court has never resolved this issue, the Sixth Circuit noted that "[v]irtually everyone will need health care services at some point, including, in the aggregate, those without health insurance." In conclusion, the court found that there is no definitive constitutional bar prohibiting Congress from regulating inactivity, and, even if there were, it would not impact this case due to the unique aspects of health care that make all individuals active in the market.

Florida v. US Department of Health and Human Services currently sits in the Eleventh Circuit on appeal from Judge Roger Vinson's decision in January, finding the individual mandate unconstitutional. Chief Judge Joel Dubina, and Judges Stanley Marcus and Frank Hull are presiding over the case, two of which were nominated by Democratic presidents. The composition of the bench, coupled with the fact that the government in this case advances arguments similar to those already made by the Sixth Circuit, suggests another favorable outcome for the Obama administration.

In its brief [PDF], the government makes a broader national scheme and substantial effects argument, while also employing the aggregation doctrine and a functionalist approach that uses similar national statistics related to health care costs. It claims congressional Commerce Clause power is valid and that the individual use of the health care commodity has a substantial effect on supply and demand in the national market for health care. Additionally, the government's brief tackles the inactivity argument. It posits that paying for health care is inevitable regardless of whether an individual is insured. Essentially, it argues that an individual, who does not purchase health insurance, is gambling whether or not he will need to pay for health care in the future. When he does need to, he will likely not be the only one bearing the cost. While the government's reasoning differs at times from the Sixth Circuit's, the conclusions they draw are fundamentally similar, and in light of the Eleventh Circuit's composition they are particularly likely to be well received.

Furthermore, in fending off Florida's claims the government draws on United States v. Maxwell, which involved a ban on the possession of child pornography. Initially in 2004, the Eleventh Circuit had invalidated the ban. However, after the Supreme Court handed down its decision in Raich, the Eleventh Circuit used the broader national scheme rationale and the aggregation doctrine to expressly overturn its earlier decision in Maxwell, reflecting the jurisprudential expansion of congressional power to regulate purely intrastate matters under the Commerce Clause. This argument is identical to the way the Sixth Circuit interpreted the effect of Raich in United States v. Bowers; essentially the Sixth Circuit version of the second Maxwell case. However, it is much more likely to be successful because it shows a clear progression Commerce Clause evolution, particularly in the Eleventh Circuit, and it is likely to be very persuasive.

There are currently two cases concerning health care reform in the Fourth Circuit. However, in Liberty University v. Geithner, serious issues of standing must be overcome, making Virginia v. Sebelius the more consequential of the two appeals. The case sits before Judges Andre Davis, Diana Motz, and James Wynn; who were all appointed by Democratic presidents.

Again, the government's brief provides similar arguments to those used in the Sixth Circuit's opinion. The government shares the Sixth Circuit's view that shifting health care costs to other participants in the health care market increases the overall cost of health care. Likewise, they both use national statistics regarding health care costs and draw on Raich and Wickard to justify the argument that the intrastate market has an aggregate impact on the interstate market. However, the government's argument is less convincing than those made in the Eleventh Circuit and by the Sixth Circuit because it failed to bolster its reasoning through a comparison to Maxwell. If a parallel had been drawn to this case, it would have served to explain more substantially how a purely intrastate activitypossession of child pornographycould affect the larger interstate market. While the government is certainly still on solid ground, its failure to compare Raich to circuit-specific cases weakened the overall strength of its aggregate argument.

Nonetheless, the government did notably distinguish the instant case from Lopez and Morrison. To do so, the government drew on Heart of Atlanta Motel v. United States, which established that a purely intrastate business could have an interstate impact. The government furthered this case to establish and explain how the ease of modern transportation has expanded the contours of congressional Commerce Clause regulation. Persuasively, it argues that travel permits individuals to cross state lines for medical care, and even that some hospitals are designated trauma centers for multiple states, but also that illness knows no boundaries and can easily spread to individuals travelling far from home. This is contrary to congressional attempts to regulate what were deemed as purely intrastate activities under the Commerce Clause in Lopez and Morrison, as they primarily involved local actors and did not implicate issues of mobility or interaction between states.

Overall, the government's brief presents legal arguments in favor of finding the individual mandate constitutional that are on solid ground. With no political barriers to hold them back, and with solid legal reasoning on their side, it is likely that the Fourth and Eleventh Circuits will join the Sixth in finding in favor of the Obama administration.

Another health care reform case, New Jersey Physicians, Inc. v. Obama, is on the docket in the Third Circuit. It comes to the court on appeal from the district court's decision granting a motion to dismiss. Similar to Liberty University, the major hurdle for the challengers here is not whether the individual mandate is constitutional, but whether there is standing to litigate. The case is before Judges Michael Chagares, Kent Jordan, and Joseph Greenaway; the first two appointed by Republican presidents, and the last by a Democrat. If the issue of standing is resolved in the plaintiff's favor, for the individual mandate upheld, one of the judges will need to follow the lead of Judge Sutton in the Sixth Circuit. Judge Chagares and Judge Jordan have similar backgrounds. Both have worked for the Department of Justice and have been law professors. However, one could argue that Judge Jordan may be more likely to defect, as he spent time clerking for Judge James Levin Latchum, who was nominated by a Democratic president.

Facing a tough road ahead and a likely circuit split, the individual mandate will probably find itself on the Supreme Court docket for review before long.

Nicholas Battaglia serves as Executive Editor for Lead Articles on the Albany Law Review. In addition to his work at the Health Law Clinic, he has worked as an intern in the health law department of an Albany, New York law firm.

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